Opinion
No. 54172-2-I
Filed: April 4, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-08363-3. Judgment or order under review. Date filed: 03/26/2004. Judge signing: Hon. Sharon Armstrong.
Counsel for Appellant(s), Dean Standish Jr Perkins, Dean Standish Perkins Assoc, 1800 9th Ave Ste 1630, Seattle, WA 98101-1322.
Scott Erik Stafne, Attorney at Law, 17207 155th Ave NE, Arlington, WA 98223.
Counsel for Respondent(s), Tamera L. Williams, Lee Smart Cook et al, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Donald Clark Harrison, Attorney at Law, 1601 5th Ave Ste 1210, Seattle, WA 98101-3602.
Alice Padilla suffered injuries on September 6, 1999, when a display suspended from hooks in the ceiling of a retail craft store fell on her head. She initially sued the retail store. Almost four years after the accident, she sued the manufacturer and retailer of the ceiling hooks, Merchandising Inventives and Display Supply. The trial court dismissed both defendants based on the three-year statute of limitations. Because Padilla's initial focus on the retail store as the cause of her injury should not have blinded her to other possible causes, the discovery rule does not help her and the trial court properly granted summary judgment.
When reviewing summary judgment, we engage in the same inquiry as the trial court. McDonald v. State Farm Fire Cas. Co., 119 Wn.2d 724, 730, 837 P.2d 1000 (1992). Summary judgment should be granted only when a reasonable person, viewing the evidence in the light most favorable to the non-moving party, could reach only one conclusion. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979).
Alice Padilla was shopping for scrapbook supplies at the Ben Franklin Crafts, Inc. store in Redmond, Washington on September 6, 1999. A display suspended from hooks in the ceiling of the store fell and struck her on the right side of her head. According to her complaint, Padilla immediately informed store manager Phil Seaton of the incident.
Within weeks, Padilla retained counsel, who sent a notice of representation to the store manager. The letter requested insurance information and a response to whether Ben Franklin disputed liability. According to the declaration of counsel for Padilla, Ben Franklin accepted liability but disputed damages.
In January 2000, counsel for Padilla visited the Ben Franklin store and "was immediately struck by the fact that the whole place was packed with goods". Counsel "saw several displays like the one that fell" but "did not see the mechanism that held them up, because they were up so high." Counsel's view was that it would be premature to file suit before the permanent impact of Padilla's head injury could be known. Accordingly, Padilla did not file suit until March 19, 2002. She named Ben Franklin as the sole defendant and alleged a breach of the duty to provide and maintain safe premises for the benefit of customers. Her theory was that Ben Franklin personnel had overloaded the display.
Clerk's Papers at 579.
Clerk's Papers at 579.
Padilla obtained a default judgment against Ben Franklin on June 4, 2002 for failure to appear or answer. Counsel for Ben Franklin filed a notice of appearance on June 10. At the end of June, the parties stipulated and agreed to set aside the default. Padilla served Ben Franklin with interrogatories.
In October 2002, three years and one month after the accident, Ben Franklin answered Padilla's complaint. Ben Franklin raised the affirmative defense that Padilla's injuries and damages, if any, were caused or contributed to by Display Supply and Merchandising Inventives, Inc., respectively the seller and manufacturer of the ceiling hooks. At this point, Padilla began to investigate the role the hooks may have played in causing the display to fall. An engineering expert consulted by Padilla advised that the hooks showed "crazing" — a microstructural breakdown in tensile strength — indicating they had been overloaded. According to Padilla, the expert concluded the hooks themselves were not defective. Padilla filed a status report with the court in early April 2003 representing that "all parties" to the suit had "been named."
Clerk's Papers at 87-88.
Clerk's Papers at 261-62.
Clerk's Papers at 19.
Clerk's Papers 124-25.
On April 22, 2003, Padilla deposed Ben Franklin store manager Phil Seaton. During this deposition, Padilla learned that Seaton, who had bought the hooks, was not aware that they had a 10 pound rated capacity. He said he had never received the warning documents that the manufacturer provides to the retailers of hooks for distribution to the end user.
Several months later, on August 11, 2003, Padilla sued Merchandising Inventives and Display Supply. She alleged they were negligent for making and selling unsafe ceiling hooks and failing to warn potential users of the maximum load capacity. Meanwhile, she settled with Ben Franklin.
Merchandising Inventives and Display Supply each successfully moved for summary judgment based upon the three-year statute of limitations applicable in product liability claims. Padilla appeals.
The statute of limitation governing product liability actions is applicable to the present case. The statute provides:
(3) Statute of limitation. Subject to the applicable provisions of chapter 4.16 RCW pertaining to the tolling and extension of any statute of limitation, no claim under this chapter may be brought more than three years from the time the claimant discovered or in the exercise of due diligence should have discovered the harm and its cause.
Ordinarily, the question of when a plaintiff should have discovered the elements of a cause of action so as to begin the running of the statute of limitations is a question of fact. Green v. APC, 136 Wn.2d 87, 96, 960 P.2d 912 (1998). Padilla claims a jury could find that the date she deposed Seaton was the earliest date on which, in the exercise of due diligence, she should have discovered the facts sufficient to support her claim against Merchandising Inventives and Display Supply. Accordingly, she claims the statute of limitations did not begin to run until April, 2003.
Padilla principally relies on two cases. In the first, a pilot was killed in 1974 in an airplane crash. North Coast Air Services, Ltd. v. Grumman Corporation, 111 Wn.2d 315, 759 P.2d 405 (1988). The investigating authorities ruled out the possibility of mechanical defect and concluded that the crash was due to pilot error. Ten years later, the pilot's father learned that an identical aircraft had nearly stalled on takeoff, allegedly because of a defect in the elevator control assembly. The pilot's father learned of other incidents where planes of the same model crashed following a stall. After further investigation, he obtained a piece of wreckage from his son's plane that contained a defective elevator linkage. He then filed a products liability suit. Our Supreme Court applied the discovery rule and concluded that the claim was not time-barred. The plaintiff had no way of knowing at the time of the crash that the cause was not pilot error, as the inquest concluded, but rather a defect in the product. Grumman, 111 Wn.2d at 327.
In the second case, a pregnant woman, Lo, was thrashed about violently when her Honda automobile accelerated uncontrollably. Lo v. Honda Motor Company, Ltd., 73 Wn. App. 448, 869 P.2d 1114 (1994). Her son suffered a traumatic birth and because the umbilical cord was compressed, he experienced a deprivation of oxygen. Lo's son was diagnosed as a spastic quadriplegic with cerebral palsy. Lo asked repeatedly how her son came to be so severely afflicted and his medical caretakers consistently told her, "these things just happen." Lo, 73 Wn. App. at 451. Lo thought the automobile accident explained the traumatic birth, and sued Honda. In the course of seeking medical evidence of causation, she contacted a California physician, who opined that the negligent acts or omissions of the medical professionals attending her son's birth more probably than not caused or contributed to his injuries. Although this doctor was at least the seventh physician consulted, he was the first to identify medical malpractice as a cause. By this time, more than three years had elapsed since the traumatic birth.
Lo amended her complaint and added the defendant doctors and hospital. The defendants unsuccessfully moved for dismissal of Lo's claims based upon the 3-year statute of limitations applicable in medical negligence actions. This court, upon discretionary review, held that reasonable minds could differ on the question of due diligence:
We cannot say as a matter of law on the basis of the present record or even in general terms that an attorney who asks several physicians the same question ("What caused Brian's cerebral palsy?") and who is never told by any of those doctors that the condition could have been caused at least in part by medical error or omission, has failed to exercise that degree of due diligence required of a legal representative. simply for failure to ask specifically about medical malpractice, particularly when the client has been told that sometimes these things just happen, and particularly when there reasonably appears to be a causal connection between the premature birth and the vehicle accident.
Lo, 73 Wn. App. at 463.
Padilla contends that Grumman and Lo stand for the proposition that a plaintiff has no duty to inquire as to other potential causes where there is a facially logical explanation for the cause of the plaintiffs' injuries.
Padilla's attorney visited the store where she was injured and formed the facially logical opinion that "the overloading of displays" was "the basis for Ben Franklin's negligence." Padilla contends that until Seaton's deposition she had no reason to believe there might be other parties who might be liable for her injuries. And she contends that it would have been unethical for her attorneys to talk to Seaton before she filed suit and was able to use the structure of a formal deposition.
Appellant's Brief at 6.
We need not resolve the peripheral dispute about whether Padilla's attorneys could have interviewed Seaton earlier, because we disagree with Padilla's main premise. Grumman and Lo do not relieve a plaintiff of the responsibility to consider more than one cause of a harm. In both Grumman and Lo, there was evidence that the plaintiffs were diligent in investigating causation. In Lo, the plaintiff repeatedly asked her son's physicians how he came to be so severely afflicted. In Grumman, an official investigation actually ruled out mechanical failure as the cause of the plane crash. By contrast, in this case the only evidence of any investigation done by Padilla within the three years after the accident was the informal visit her attorney made to the Ben Franklin store in January of 2000. There is no apparent reason why plaintiff's theory of overloading, formed during this visit, should have focused exclusively on the store personnel who hung the sign without consideration of the possibility that the manufacturer and retailer had failed to provide information about how much weight the hooks could bear. The product liability statute of limitations is intended to give the plaintiff a "fair chance" to ascertain the harm and its cause. Grumman, 111 Wn.2d at 328.
Protection to the defendant is afforded by the provision that plaintiff may be barred if plaintiff did not exercise due diligence in discovering the harm and its cause. This standard of reasonable inquiry placed upon the plaintiff serves the policy reasons underlying statutes of limitation.
Grumman, 111 Wn.2d at 328. Discovery rules require a claimant to use due diligence in discovering the basis for the cause of action. Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 772, 733 P.2d 530 (1987). The discovery rule will not be invoked where the plaintiff had ready access to information that a wrong occurred but failed to exercise due diligence. Zaleck v. Everett Clinic, 60 Wn. App. 107, 113, 802 P.2d 826 (1991).
Padilla's case, instead of being governed by Grumman and Lo, is more like Gevaart v. Metco Construction, Inc, 111 Wn.2d 499, 760 P.2d 348 (1988). The plaintiff in Gevaart lost her balance on a stair that sloped downward. She learned a month after her accident that the stair may have been improperly constructed. She eventually retained counsel and obtained an expert's opinion that the stairway was indeed poorly designed and constructed. Three years and four days after her accident, she filed suit against the builder. As in the present case, the plaintiff claimed that the discovery rule should apply because she had no knowledge of a possible cause of action against the defendant until a considerable time had passed after she was injured. But the Court concluded that on the date of the accident, she knew she was damaged; she knew the step sloped; and by the exercise of due diligence she could have learned within three years that the stair did not conform to the building code and was defectively designed. The Court upheld dismissal of her claims. Gevaart, 111 Wn.2d at 501-02.
Padilla, similarly, had a fair chance to ascertain what caused the sign to fall. Her failure to investigate the potential liability of other entities cannot be excused by invoking the discovery rule. The only reasonable conclusion from the evidence is that Padilla failed to exercise due diligence in discovering the elements of her cause of action against the present defendants in a timely manner. Accordingly, her cause of action is barred by the three year statute of limitations.
Affirmed.
GROSSE and COX, JJ., Concur.